<PAGE>
Exhibit 10.1
DATED DECEMBER 22, 2006
(1) P HAWORTH AND OTHERS
(2) CTI DATA SOLUTIONS LIMITED
----------
SHARE TRANSFER AGREEMENT
-relating to-
RYDER SYSTEMS LIMITED
----------
(MARTINEAU JOHNSON LOGO)
NO 1 COLMORE SQUARE, BIRMINGHAM, B4 6AA
TEL:
44(0)870 763 2000 FAX: 44(0)870 763 2001 DX 721090 BIRMINGHAM
43
ALSO AT: 78 CANNON STREET LONDON EC4N 6NQ
Tel:
44(0)870 763 2000 Fax: 44(0)207 618 8130 DX 42 London Chancery
Lane
www.martineau-johnson.co.uk Email: lawyers@martjohn.com
<PAGE>
INDEX
<TABLE>
<CAPTION>
Clause
Page
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----
<S>
<C>
1 INTERPRETATION
1
2 AGREEMENT FOR SALE
AND PURCHASE
9
3 CONSIDERATION
10
4 WARRANTIES AND
TAXATION
15
5 COMPLETION
16
6 CONFIDENTIAL
INFORMATION AND USE OF NAMES
22
7 RESTRICTIVE
UNDERTAKINGS
23
8 INDEMNITIES
25
9 THIRD PARTY RIGHTS
26
10 ASSIGNMENT
26
11 WHOLE AGREEMENT
27
12 WAIVER
27
13 PROVISIONS SURVIVING COMPLETION
28
14 PROPER LAW AND JURISDICTION
28
15 JURISDICTION
28
16 FURTHER ASSURANCE
28
17 COUNTERPARTS
28
18 COSTS
28
19 SEVERABILITY
28
20 PUBLICITY
29
21 NOTICES
29
SCHEDULE 1 - The Sellers
31
SCHEDULE 2
32
SCHEDULE 3 - Property
34
SCHEDULE 4 - Tax
35
</TABLE>
<PAGE>
<TABLE>
<S>
<C>
Part 1
Definitions
35
Part 2 Tax
Warranties
41
Part 3 Tax
Covenant
49
Part 4
Limitations and procedure
51
SCHEDULE 5 - The Warranties
58
SCHEDULE 6 - Claims procedure and determination and Sellers'
safeguards 84
SCHEDULE 7
89
Part 1 -
Interpretation
89
Part 2 -
Calculation
89
Part 3 -
Accounting principles, methods and bases
90
SCHEDULE 8 - Countries in Restricted Area
92
SCHEDULE 9 - Pro Forma for Completion Accounts
94
</TABLE>
<PAGE>
This Agreement is made on _____________ 2006 between:
(1) THE INDIVIDUALS
whose names and addresses are set out in column 1 of
Schedule 1 (each a "Seller" and together "the Sellers") and
(2) CTI DATA SOLUTIONS
LIMITED, a company registered in England under number
2969593, whose registered office is at Nordic House, 120 High
Street,
Purley, Surrey, CR8 2AD ("the Buyer").
IT IS AGREED AS FOLLOWS:
1.
INTERPRETATION
In
this Agreement:
1.1 The following
words and expressions shall have the following meanings:
<TABLE>
<S>
<C>
"the Accounts"
the audited accounts of the Company comprising
an audited balance sheet as at the Accounts
Date and an audited profit and loss account for
the financial period ended on the Accounts Date
together with the reports of the directors and
auditors, any cash flow statements and all
notes thereto;
"the Accounts Date"
30 April 2006;
"the Act"
the Companies Act 1985;
"the Applicable
Data
the Data Protection Acts 1984 and 1998 and the
Protection Laws"
Telecommunications (Data Protection and
Privacy) (Direct Marketing) Regulations 1998;
"the Bank"
Clydesdale Bank Plc t/a Yorkshire Bank
(Birmingham branch);
"Business Day"
any day (other than Saturday) on which clearing
banks are open for normal banking business in
sterling in the City of London;
</TABLE>
1
<PAGE>
<TABLE>
<S>
<C>
"Business Name Agreement"
an agreement in the Agreed Terms proposed to be
entered into between the Company and Paul Ryder
Haworth
relating to the use of the name "Ryder"
and other names;
"Business Name Assignment" an
agreement dated the date of this Agreement
but entered prior to this Agreement between the
Company and Ryder Systems Pty Limited relating
to the assignment of the name "Ryder" and
certain domain names;
"Buyer's Group"
together the Buyer, each holding company of the
Buyer and each subsidiary of the Buyer for the
time being;
"the Buyer's Solicitors"
Martineau Johnson of No. 1 Colmore Square,
Birmingham B4 6AA or any successor firm;
"the Company"
Ryder Systems Limited (of which particulars are
given in Schedule 2);
"Completion"
completion of the acquisition and disposal of
the Shares in accordance with clause 5;
"Completion Date"
the date of this Agreement;
"the Completion NAV"
as defined in part 1 of Schedule 7;
"Confidential Information" all
secret or confidential commercial,
financial and technical information, know-how,
trade secrets, inventions, computer software
and other information whatsoever and in
whatever form or medium and whether disclosed
orally or in writing, together with all
reproductions in whatsoever form or medium and
any part or parts of it;
"Covenantor"
Paul Ryder Haworth (one of the Sellers);
</TABLE>
2
<PAGE>
<TABLE>
<S>
<C>
"the Disclosure Letter"
the letter having the same date as this
Agreement from the Warrantors to the Buyer
(including the schedules, appendices and
annexures thereto);
"the Due Amount"
the amount (if any) due to the Buyer on a
Relevant Claim being settled;
"the Due Proportions"
the proportions set opposite the names of the
Sellers in column 3 of Schedule 1;
"Encumbrance"
any equity, right to acquire, option, right of
pre-emption, mortgage, charge, pledge, lien,
assignment, title retention or any other
security interest, agreement or arrangement,
whether monetary or not;
"Escrow Account"
a joint deposit account with the Bank in the
joint names of the
Buyer's Solicitors and the
Sellers' Solicitors;
"Escrow Agreement"
the agreement in the Agreed Terms to be entered
into by the Seller's Solicitors and the Buyer's
Solicitors regarding the operation of the
Escrow Account;
"Estimated Liability"
the amount claimed by the Buyer in respect of a
Relevant Claim;
</TABLE>
3
<PAGE>
<TABLE>
<S>
<C>
"Financial Statements"
unaudited accounts of the Company for the nine
month periods ended 30 September 2005 and 30
September 2006 and for the six month periods
ended 31 October 2005 and 31 October 2006
comprising a balance sheet, profit and loss
account and cash flow statement together with
corresponding notes prepared on the same
accounting principles, methods and bases used
in the preparation of the Accounts,
consistently applied, and in accordance with
the generally accepted United Kingdom
accounting principles, methods and bases;
"FRS"
a financial reporting standard in force at any
material time as issued by the Accounting
Standards Board of the United Kingdom;
"Indemnities"
means the obligations of the Warrantors under
clause 8;
"Intellectual Property"
(a) patents, trade
marks, service marks,
registered designs, applications and
rights to apply for any of those rights,
trade, business and company names,
internet domain names and e-mail
addresses, unregistered trade marks and
service marks, copyrights, software source
code and database rights, know-how, rights
in designs and inventions;
(b) rights under
licenses, consents, orders,
statutes or otherwise in relation to a
right in paragraph (a);
</TABLE>
4
<PAGE>
<TABLE>
<S>
<C>
(c) rights of the same
or similar effect or
nature as or to those in paragraphs (a)
and (b) which now or in the future may
subsist; and
(d) the right to sue
for past infringements of
any of the foregoing rights;
"Intellectual Property Rights" all Intellectual Property
owned, used or
required to be used by the Company;
"Intellectual Property
means agreements or arrangements relating
Agreements"
(wholly or partly) to Intellectual Property or
to the disclosure, use, assignment or patenting
of any invention, discovery, improvement,
process, formulae or other know-how;
"the Management Accounts"
the management accounts of the Company for the
period from the Accounts Date to 30 October
2006 copies of which are attached to the
Disclosure Letter;
"the Overdue Debtors"
as defined in paragraph 2 of Part 3 of Schedule
7;
"Principal Sum"
as defined in clause 3.3.2;
"Proceedings"
any legal action or proceedings arising out of
or in connection with this Agreement;
"the Property"
the property or properties briefly described in
Schedule 3;
"Reduction"
as defined in clause 3.1;
"Release"
any release, waiver or compromise or any other
arrangement of any kind having similar or
analogous effect;
</TABLE>
5
<PAGE>
<TABLE>
<S>
<C>
"Release Date"
the Business Day immediately following the
first anniversary of the Completion Date;
"Relevant Claim"
a bona fide claim for breach of the Warranties,
or a bona fide claim under the Tax Covenant or
a bona fide claim under clause 9 (Indemnities)
"the Saleslogix CD Rom"
a CD Rom containing part of the Saleslogix
database in the Agreed Form;
"the Sellers' Solicitors"
means Laytons of 22 St John Street, Manchester,
M3 4EB;
"the Shares"
all the issued shares in the capital of the
Company;
"SSAP"
a statement of standard accounting practice in
force at any material time as issued by the
Accounting Standards Committee of the United
Kingdom and adopted by the Accounting Standards
Board of the United Kingdom;
"Subsidiary"
Ryder Systems Trustee Limited (company number
4322454) further details of which are set out
in Schedule 2;
"the Tax Covenants"
the obligations on the part of the Warrantors
set out in part 3 of Schedule 4;
"Tax"
as defined in part 1 of Schedule 4;
"the Tax Warranties"
the warranties and representations set out in
part 2 of
Schedule 4;
"the Sellers' Solicitors"
Laytons, of 22 St John Street, Manchester, M3
4EB or any successor firm;
"the Warranties"
the warranties and representations set out in
Schedule 5 and the Tax Warranties;
</TABLE>
6
<PAGE>
<TABLE>
<S>
<C>
"the Warrantors"
Paul Ryder Haworth and Susan Patricia Haworth
(two of the Sellers);
"Warranty"
one of the Warranties (and the word "Warranty"
followed by a number shall be deemed to be a
reference to the paragraph of Schedule 5 with
that number).
</TABLE>
1.2 References to the
Property shall, where the context so admits or requires,
be
construed as references to all properties briefly described in
Schedule
3
and each of them and each and every part of each of them.
1.3 Unless the context
otherwise expressly requires, words and expressions
which are otherwise defined in the Companies Acts (as defined in
section
744
of the Act) shall have the same meaning when used in this
Agreement,
but
"company" shall mean and include both "company" and "body
corporate",
as
in each case defined in the Act.
1.4 A reference to any
statutory or other legislative provision shall be
interpreted as a reference to that provision as in force at the
date of
this
Agreement and, additionally, where the context so permits:-
1.4.1 in respect of any earlier date, as a reference to any and all
provisions
in
force at that earlier date of which it is a re-enactment; and
1.4.2 in respect of any later date, as a reference to any and all
provisions in
force at that later date which are a re-enactment thereof;
in
each case whether with or without modification.
1.5 The schedules form
an integral part of this Agreement.
1.6 A reference to any
gender shall include the other and neuter gender and a
reference to a "person" includes a reference to any individual,
firm,
company, corporation or other body corporate, government, state or
agency
of a
state or any joint venture, association or partnership, works
council
or
employee representative body (whether or not having separate
legal
personality).
1.7 The singular shall
include the plural and vice versa.
7
<PAGE>
1.8 A document
referred to as being in "the Agreed Terms" or "Agreed Form"
shall be in the form of that document signed or initialed for
identification by or on behalf of the parties.
1.9 All warranties,
representations, undertakings, guarantees, indemnities,
covenants, agreements and obligations given or entered into by or
on behalf
of
more than one person in this Agreement are, unless otherwise
expressly
stated, given or entered into jointly and severally.
1.10 Any Warranty qualified by the expression "to the best of the
Warrantors'
knowledge and belief" or "so far as the Warrantors are aware" or
any
similar expression shall be deemed to include knowledge,
information and
belief which any one or more of the Warrantors has or which the
Warrantors
would have had if they had made all reasonable enquiries and
includes the
knowledge, information and belief of each of:
1.10.1 the professional advisers who act, or at the relevant time
acted, for the
Company; and
1.10.2 the directors, company secretary, financial and
administration director
and
general managers of the Company,
and
of any other person of whom it would be reasonable to make such
enquiry
or
of whom it is stated that enquiry has been made.
A
person shall be deemed to be connected with another if that person
is
connected with such other within the meaning of section 839 of
Income &
Corporation Taxes Act 1988.
1.11 References to "indemnify" and "indemnifying" any person
against any
circumstance include indemnifying and keeping him indemnified from
and
against all liabilities, losses, claims, demands, damages, costs,
expenses
and
interest which he may suffer or incur in connection with or arising
out
of
that circumstance.
1.12 "Associate" has the meaning given by section 435 of the
Insolvency Act
1986.
1.13 General.
Words shall not be given a restrictive meaning:-
8
<PAGE>
1.13.1 if they are introduced by the word "other", by reason of the
fact that
they
are preceded by words indicating a particular class of act, matter
or
thing; or
1.13.2 by reason of the fact that they are followed by particular
examples
intended to be embraced by those general words.
1.14 The word "Notice" includes any notice, demand, consent or
other
communication.
1.15 The headings are inserted for convenience only and shall not
affect the
construction of this Agreement.
1.16 The Buyer enters into this Agreement, so far as may be
necessary for the
enforcement of any provision for the benefit of the Company, as
Subsidiary
for
and on behalf of the Company.
1.17 References to times shall mean London time unless otherwise
stated.
1.18 A reference to "the Sellers" shall include a reference to each
of them and,
unless the context otherwise expressly requires, to each of
their
respective personal representatives.
2. AGREEMENT FOR
SALE AND PURCHASE
2.1 SALE AND
PURCHASE
On
Completion each of the Sellers shall sell the Shares with full
title
guarantee and the Buyer shall buy them free from any Encumbrance
and
together with all rights now or hereafter attaching to them, on and
subject
to
the terms of this Agreement.
2.2 THE LAW OF
PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1994
The
operation of the covenants implied by sections 2 and 3 of the above
Act
shall be deemed to be extended so as not to exclude the liability
of the
Sellers in respect of matters:-
2.2.1 of which the Sellers does not know or could not reasonably be
expected to
know; or
9
<PAGE>
2.2.2 which at the time of transfer are within the actual knowledge
of, or the
existence of which is a necessary consequence of facts then within
the
actual knowledge, of the Buyer.
2.3 WAIVER
Each
of the Sellers waives all rights of pre-emption and other
restrictions
on
transfers conferred on or enjoyed by him in respect of the
Shares,
whether under the articles of association of the Company or
otherwise.
2.4 SIMULTANEOUS
COMPLETION
The
Buyer shall not be obliged to complete the purchase of any of
the
Shares unless the purchase of all the Shares is completed
simultaneously.
3.
CONSIDERATION
3.1 AMOUNT
The
purchase price payable to the Sellers for the Shares shall be the
sum
of
L5,600,000 which sum shall be:
3.1.1 reduced ("the Reduction") to the extent that Completion NAV
is less than
one
million two hundred and forty thousand pounds (L1,240,000); or
3.1.2 increased ("the Increase") by the lesser of the extent that
Completion NAV
is
more than one million two hundred and forty thousand pounds
(L1,240,000)
and
the amount of cash comprised within the calculation of Completion
NAV;
and
shall be payable in the Due Proportions
3.2 FIRST PAYMENTS -
ON COMPLETION
On
Completion (or if later the date of receipt of the stock transfer
forms
referred to in clause 5.2.1.6) and pending the later agreement
or
determination of the Completion NAV, the Buyer shall pay the sum
of,
L5,100,000 to the Sellers' Solicitors (on behalf of the Sellers) on
account
of
the purchase price for the Shares.
10
<PAGE>
3.3 PRINCIPAL SUM
On
Completion the Buyer shall pay the sum of L500,000 (five
hundred
thousand pounds) ("the Principal Sum") to the Buyer's Solicitors
and the
Sellers' Solicitors jointly for placing into the Escrow Account, to
be held
under a mandate in the Agreed Terms and to be held and dealt with
as set
out
in this clause 3.
3.4 EMI
LIABILITIES
3.4.1 For the purposes of this Agreement, "EMI Liabilities" shall
mean together:
3.4.1.1 all employer's national insurance contributions that arise
or is
otherwise incurred by the Company or the Subsidiary in relation to
the
Relevant Latham Event (as defined in Schedule 4), the issue of
shares to
David Latham pursuant to the Relevant Latham Event ("the Latham
Option
Shares") or the sale of the Latham Option Shares by David Latham
resulting
from
the Relevant Latham Event;
3.4.1.2 all employee's national insurance contributions liabilities
and PAYE
liabilities that arise or will otherwise be chargeable in relation
to the
Relevant Latham Event, the issue of the Latham Option Shares to
David
Latham pursuant to the Relevant Latham Event or the sale of the
Latham
Option Shares by David Latham resulting from the Relevant Latham
Event;
3.4.1.3 all employer's national insurance contributions that arise
or is
otherwise incurred by the Company or the Subsidiary in relation to
the
Relevant Wilson Event (as defined in Schedule 4), the issue of
shares to
Andrew Wilson pursuant to the Relevant Wilson Event ("the Wilson
Option
Shares") or the sale of the Wilson Option Shares by Andrew Wilson
resulting
from
the Relevant Wilson Event;
3.4.1.4 all employee's national insurance contributions liabilities
and PAYE
liabilities that arise or will otherwise be chargeable in relation
to the
Relevant Wilson Event, the issue of the Wilson Option Shares to
Andrew
Wilson pursuant to the Relevant Wilson Event or the sale of the
Wilson
Option Shares by Andrew
Wilson resulting from the Relevant Wilson Event;
(together the "EMI Liabilities").
11
<PAGE>
3.5 PAYMENT FOLLOWING
CALCULATION OF COMPLETION NAV
On
the third Business Day after the date on which the Completion NAV
is
agreed or determined in accordance with Schedule 7:
3.5.1 If the Completion NAV is less than L1,240,000 the Sellers
shall pay to the
Buyer a sum equal to the Reduction, such payment to be
satisfied:
3.5.1.1 by the payment of an equivalent sum from the Escrow Account
to the
extent sufficient funds remain therein; and
3.5.1.2 by payment of any excess which shall be satisfied by the
payment in cash
in
accordance with clause 3.7.3; or
3.5.2 If the Completion NAV is more than L1,240,000 the Buyer shall
pay to the
Sellers a sum equal to the Increase, such payment to be satisfied
by the
payment of cash in accordance with clause 3.7.1.
3.6 THE ESCROW
ACCOUNT
3.6.1 All interest earned on the Escrow Account shall accrue and be
paid to the
Sellers and/or the Buyer in the proportions in which they
respectively
become entitled to the Principal Sum and shall be paid at the same
time as
any
payment of all or any part of the Principal Sum is made from the
Escrow
Account.
3.6.2 The Sellers and the Buyer shall procure that their respective
solicitors
shall make any payment which is required to be made from the Escrow
Account
pursuant to the provisions of this clause 3.
3.6.3 No amount shall be released out of the Escrow Account
otherwise than in
accordance with this clause 3.
3.6.4 The liability to taxation on any interest on any amount in
the Escrow
Account shall be borne by the party ultimately entitled to that
amount.
3.7 RETENTION
3.7.1 Subject as otherwise provided by this clause 3.7, the amount
(if any) of
the
Principal Sum standing to the credit of the Escrow Account
(together
with
any accrued interest but less any applicable bank charges) on
the
Release Date shall be released to the Sellers.
12
<PAGE>
3.7.2 If a Relevant Claim has been notified by the Buyer to the
Sellers prior to
the
Release Date in accordance with this Agreement, no amount shall
be
released to the Sellers from the Retention Account otherwise than
in
accordance with the provisions of this clause 3.
3.7.3 If, prior to the Release Date, a Relevant Claim is settled
and there is a
Due
Amount, the parties shall, unless such Due Amount has been paid to
the
Buyer, as soon as practicable following such settlement, procure
the
payment to the Buyer out of the Escrow Account the lesser of the
Due Amount
and
the amount standing to the credit of the Retention Account
(together
with
any interest which has accrued on the amount so paid but less
any
applicable bank charges).
3.7.4 As soon as practicable following the settlement of any
Relevant Claim
outstanding at the Release Date in respect of which there is a Due
Amount,
the
parties shall, unless such Due Amount has been paid to the
Buyer,
procure the payment to the Buyer out of the Escrow Account the
lesser of
the
Due Amount and the amount standing to the credit of the
Retention
Account (together with any interest which has accrued on the amount
so paid
but
less any applicable bank charges) any payment to the Buyer out of
the
Escrow Account shall constitute a pound for pound reduction in
the
consideration for the Shares provided nothing in this clause shall
limit or
exclude the liability of the Warrantors.
3.7.5 Following settlement of all Relevant Claims outstanding (if
any) at the
Release Date which have been notified in accordance with paragraph
11 of
Schedule 6 to the Sellers prior to the Release Date (and for the
purpose of
this
clause 3.7.5 only a Relevant Claim shall be deemed settled if
the
Buyer shall fail to comply with paragraph 11.3 of Schedule 6) and
payment
of
all Due Amounts to the Buyer, the parties shall, as soon as
practicable,
procure the payment of any balance standing to the credit of the
Escrow
Account (together with any interest which has accrued on such
balance less
any
applicable bank charges) to the Sellers.
3.7.6 A Relevant Claim shall be deemed settled for the purposes of
this clause
3.7
if:
(a)
the Sellers and the
Buyer so agree in writing; or
13
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(b)
the Relevant Claim has
been determined by a court of competent
jurisdiction from which there is no right of appeal, or from
whose
judgment the Buyer or the Sellers (as the case may be) are debarred
by
passage of time or otherwise from making an appeal;
(c)
and for the purpose of
clause 3.7.5 only a Relevant Claim shall be
deemed settled if the Buyer shall fail to comply with paragraph
11.3
of Schedule 6.
3.7.7 The amount of the purchase price paid into the Escrow Account
shall not be
regarded as imposing any limit on the amount of any claims under
this
agreement or under any of the documents executed pursuant to
this
agreement;
3.7.8 If a Due Amount is not satisfied in full from the Escrow
Account, the
Relevant Claim (to the
extent not so satisfied) shall remain fully
enforceable against the Sellers; and
3.7.9 Nothing in this clause 3 shall prejudice, limit or otherwise
affect any
right, including to make any claim, or remedy the Buyer may have
from time
to
time against the Sellers either under this agreement or under any
of the
documents executed pursuant to this agreement.
3.8 METHOD OF
PAYMENT
3.8.1 Unless otherwise specified, any payment required to be made
to the Sellers
pursuant to this
clause 3 shall be made in cleared funds by way of a same
day
telegraphic transfer to the account with a UK clearing bank
notified in
writing to the Buyer's Solicitors prior to the due date for
payment.
3.8.2 The Sellers' Solicitors' receipt for any sums payable by the
Buyer
pursuant to this clause 3 shall be a good and sufficient discharge
of the
Buyer's obligation to make the payment in question and the Buyer
shall not
be
further concerned as to the application of any sums so paid.
3.8.3 Any sum payable to the Buyer pursuant to this clause 3 shall,
unless
otherwise specified, be paid in cleared funds by way of a same
day
telegraphic transfer to the account with a UK clearing bank
notified in
writing to the Sellers' Solicitors prior to the due date for
payment.
14
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3.9 DEBTORS
The
Buyer shall pay to the Sellers (by way of an addition to the
purchase
price for the Shares) a sum equal to such part of the Overdue
Debtors as is
recovered by the Company within six months of Completion and such
sum shall
be
paid:
3.9.1 on the third Business Day after the date on which the
Completion NAV is
agreed or determined in accordance with Schedule 7 in respect only
of such
part
of the Overdue Debtors as is recovered by the Company prior to
such
date; and
3.9.2 in respect of each following 30 day period up to and
including the six
month anniversary of the date of this Agreement (each a
"Calculation
Period") on the third Business Day after the end of such
Calculation Period
in
respect only of such part of the Overdue Debtors as is recovered by
the
Company in such Calculation Period.
4. WARRANTIES
AND TAXATION
4.1 REPRESENTATIONS
AND WARRANTIES
The
Warrantors jointly and severally warrant to the Buyer that each of
the
Warranties is true and accurate in all respects and not misleading
at the
date
of this Agreement.
4.2 TAX COVENANTS
The
Warrantors jointly and severally undertake with the Buyer in the
terms
of
the Tax Covenants.
4.3 CLAIMS PROCEDURE
AND DETERMINATION AND WARRANTORS' SAFEGUARDS
Schedule 6 shall apply in relation to the determination of the
rights and
remedies of the Buyer in respect of the Warranties and the Tax
Covenants
4.4 PURCHASER
WARRANTY
The
Buyer warrants to, and undertakes with, the Sellers that:
4.4.1 it has the requisite power and authority to enter into and
perform this
Agreement;
15
<PAGE>
4.4.2 the execution and delivery of, and the performance by it of
its
obligations under, this Agreement will not:
4.4.2.1 result in a breach of any provision of its memorandum or
articles of
association;
4.4.2.2 result in a breach of, or constitute a default under, any
agreement or
instrument or regulations of which it is a party, or by which it is
bound;
or
4.4.2.3 result in a breach of any applicable order, judgment or
decree of any
court or governmental authority.
5.
COMPLETION
5.1 DATE OF
COMPLETION
Completion shall take place on the Completion Date at the offices
of the
Buyer's Solicitors.
5.2 SELLERS'
OBLIGATIONS
On
Completion the Sellers shall:
5.2.1 deliver to the Buyer:
5.2.1.1 duly executed transfers of the Latham Option Shares by the
Subsidiary in
favour of David Latham certified as category L for the purposes
of
exemption from stamp duty together with the relative share
certificates and
certified copies of any power of attorney under which any such
transfers
may
have been executed;
5.2.1.2 duly executed transfers of the Wilson Option Shares by the
Subsidiary in
favour of Andrew Wilson certified as category L for the purposes
of
exemption from stamp duty together with the relative share
certificates and
certified copies of any power of attorney under which any such
transfers
may
have been executed;
5.2.1.3 board minutes in the Agreed Terms of the Subsidiary
approving the
transfer of the Latham Option Shares and Wilson Option Shares;
5.2.1.4 notice of exercise in the Agreed Terms of the Latham Option
Shares and
Wilson Option Shares executed by the Subsidiary;
16
<PAGE>
5.2.1.5 board minutes in the Agreed Terms of the Company approving
the
registration of Andrew Wilson and David Latham as holders of the
Latham
Option Shares and Wilson Option Shares;
5.2.1.6 transfers of the Shares by the registered holders thereof
in favour of
the
Buyer together with the relative share certificates and
certified
copies of any power of attorney under which any of such transfers
may have
been
executed;
5.2.1.7 all the statutory and other books (duly written up to date)
of the
Company and its certificate of incorporation or registration
and
certificate of incorporation on change of name and common seals (if
any);
5.2.1.8 letters of resignation in the Agreed Terms executed by the
persons
resigning as directors
and secretary of the Company pursuant to clause
5.2.2.3;
5.2.1.9 evidence satisfactory to the Buyer that Astron, Vodafone
UK, Vodafone
Ireland, Verizon and Opal are aware of the proposed acquisition of
the
Company by the Buyer and will continue to trade with the customer
on the
same
terms that apply immediately prior to Completion;
5.2.1.10 the title deeds to the Property;
5.2.1.11 all credit and charge cards held to the account of the
Company and all
other papers and documents belonging to the Company which are in
the
possession of the Sellers or any director of the Company except to
the
extent required by Andrew Wilson and David Latham pursuant to the
service
agreements referred to in clause 5.2.2.8 of this Agreement;
5.2.1.12 the Disclosure Letter duly executed;
5.2.1.13 the Escrow Agreement duly signed by the Seller's
Solicitors;
5.2.1.14 a copy of the Accounts and Financial Statements in each
case on a
comparative basis;
5.2.1.15 a schedule of cash disbursements made or agreed to be made
by the
Company for the period from 31 October 2006 to Completion;
5.2.1.16 a schedule of cash receipts made or agreed to be made by
the Company
for
the period from 31 October 2006 to Completion;
17
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(the
schedules in clauses 5.2.1.15 and 5.2.1.6 being together the
"Cash
Schedules");
5.2.1.17 a counterpart of the Business Name Agreement duly executed
by Paul
Haworth;
5.2.1.18 a duly executed counter-part of the Business Name
Assignment; and
5.2.1.19 evidence satisfactory to the Buyer that all stamp duty
payable in
relation to the Property has been paid;
5.2.2 procure:
5.2.2.1 the transaction of the other business referred to in the
completion
board minutes in the Agreed Terms;
5.2.2.2 such persons as the Buyer may nominate to be validly
appointed as
additional directors and secretary of the Company;
5.2.2.3 upon such appointment, the resignation of the directors and
the
secretary of the Company both from their respective offices and
as
employees;
5.2.2.4 the written resignation of the auditors of the Company
incorporating an
acknowledgment that they have no claim against the Company for any
fees or
disbursements, whether billed or unbilled, in respect of the period
up to
Completion and the statement referred to in section 394 of the
Act;
5.2.2.5 the release of all Encumbrances given by the Company
(whether to its
bankers or otherwise) including, without limitation, the debenture
granted
to
Lloyds TSB Bank plc on 22 February 2003 and of all guarantees given
by
the
Company in respect of the obligations of any third party;
5.2.2.6 the repayment (by such method as the Buyer directs) without
deduction or
set-off of any and all sums owed to the Company by any of the
Sellers, the
directors of the Company and any person (other than a subsidiary of
the
Company) who is an associate of or connected with any of them;
5.2.2.7 the release in the Agreed Terms of any and all claims
against the
Company by each of the Warrantors and any person who is an
associate of or
connected with any of them, incorporating an acknowledgment by each
that
there is no agreement or arrangement under which any such claim
might arise
in
the future;
18
<PAGE>
5.2.2.8 that the Buyer and each of Andrew Wilson and David Latham
enter into
service agreements in the Agreed Terms;
5.2.2.9 that the Buyer and Paul Hurst enter into a compromise
agreement in the
Agreed Terms;
5.2.2.10 that by way of written resolution the Company adopts new
articles of
association in the Agreed Terms; and
5.2.2.11 existing mandates to the bankers of the Company are
revoked and new
instructions given in the form requested by the Buyer;
5.3 BUYER'S
OBLIGATIONS
On
Completion, and against compliance by the Sellers with their
obligations
under clause 5.2, the Buyer shall:
5.3.1 make the payments required to be made on Completion in
accordance with
clause 3;
5.3.2 acknowledge receipt of the Disclosure Letter; and
5.3.3 deliver the Escrow Agreement duly signed by the Buyer's
Solicitors; and
5.3.4 acknowledge the obligation on the Company in clause 5.4 of
the Business
Name
Agreement and undertake to procure that the Company complies with
such
obligations to the extent it is able to do so.
5.4 DECLARATION OF
TRUST IN RELATION TO THE SHARES
Each
of the Sellers declares that, for so long as he remains the
registered
holder of any of the Shares after Completion, he will:
5.4.1 stand and be possessed of them and of all dividends and other
rights
arising out of or in connection with them in trust for the Buyer
and its
successors in title;
5.4.2 at all times thereafter deal with and dispose of them and all
such
dividends and rights as the Buyer or any such successor may direct;
and
19
<PAGE>
5.4.3 at the request of the Buyer or any such successor vote at all
meetings
held
during such period which he or she shall be entitled to attend as
the
holder of them in such manner as the Buyer or any such successor
may
direct.
Each
of the Sellers hereby irrevocably appoints the Buyer or any
such
successor to be its attorney and in its name and on its behalf to
sign any
written resolution of the members of the Company and to execute
all
instruments of proxy or other documents which the Buyer or any
such
successor may reasonably require and which may be necessary or
expedient to
enable the Buyer or any such successor to attend and vote at any
such
meeting. The Seller hereby irrevocably authorises the Buyer or any
such
successor on its behalf to sign any written resolution of the
members of
the
Company and to execute all instruments of proxy or other
documents
which the Buyer or any such successor may reasonably require and
which may
be
necessary or expedient to enable the Buyer or any such successor
to
attend and vote at any such meeting.
5.5 EMPLOYEE BENEFIT
TRUST
5.5.1 Paul Ryder Haworth and Susan Patricia Haworth shall resign as
director and
secretary respectively of the Subsidiary in the Agreed Terms on the
earlier
of:
(a)
the distribution of
the sums and assets held by Subsidiary as sole
trustee of the Ryder Systems Employee Benefit Trust ("the EBT")
in
accordance with the terms of the EBT; and
(b) the date falling 90 days after
Completion.
It
is acknowledged and agreed by the Buyer that prior to such
resignations
(i)
it shall procure that there are no changes to the board of
directors or
secretary of Subsidiary and (ii) the sums and assets held on behalf
of the
EBT
shall be distributed in accordance with the wishes and directions
of
Subsidiary acting through its board of directors.
5.5.2 The Warrantors shall promptly (and in any event by no later
than the date
falling 60 days after Completion) determine and notify to the
Company and
the
Buyer in writing (the "Directions") of the amounts they wish, in
their
absolute discretion (subject to compliance at all times with the
rules of
the
EBT), each employee or former employee of the Company or their
connected persons to
20
<PAGE>
receive from the L260,000 (net of costs and expenses) (the "EBT
Sale
Proceeds") that the Subsidiary receives as proceeds for the sale of
shares
it
holds in the Company to the Buyer (the "Disposal") after
deduction
therefrom (calculated by the Company acting reasonably) of:
5.5.2.1 the amount of capital gains tax that shall be payable by
EBT in
connection with the Disposal;
5.5.2.2 the amount (if any) of employer's national insurance
contributions
liabilities that arise or will otherwise be incurred by the
Subsidiary or
the
Company in relation to the distribution of the amounts referred to
in
the
Directions;
5.5.2.3 the amount (if any) of employees' national insurance
contributions
liabilities that arise or will otherwise be chargeable in relation
to the
distribution of the amounts referred to in the Directions;
5.5.2.4 the amount of PAYE liabilities (if any) that arise or will
otherwise be
chargeable in relation to the distribution of the amounts referred
to in
the
Directions.
(The
amounts in clauses 5.5.2.1 to 5.5.2.4 together referred to in
this
clause 5.5 as the "Liabilities")
5.5.3 Upon receipt of the Directions the Buyer shall (to the extent
that it is
able
by the exercise of its rights as a shareholder in the Company
and
directing the individuals it has appointed to the board of
directors of the
Company on Completion)
procure that:
5.5.3.1 the Subsidiary (including all of its officers and its
employees) shall
promptly (and in any event within 7 days of receipt of the
Directions by
the
Buyer) transfer to the Company the EBT Sale Proceeds;
5.5.3.2 the Company (including all of its officers and employees)
shall apply
the
balance of the EBT Sale Proceeds it receives from EBT pursuant
to
clause 5.5.3 (after deduction therefrom of a sum equal to that
required to
discharge the Liabilities) to pay for and on behalf of EBT amounts
to the
employees or former employees of the Company or their connected
persons in
accordance with the Directions, provided that in making and
carrying out
the
Directions and such payments the Warrantors and the Company shall
at
all
times comply with the rules of the EBT;
21
<PAGE>
5.5.3.3 use the EBT Sale Proceeds to discharge all of the
Liabilities (other
than
the liabilities referred to in clause 5.5.3) for and on behalf of
EBT,
the
relevant employees of the Company and/or the Company (as
appropriate)
as
and when they fall due for payment; and
5.5.3.4 any amount of the EBT Sale Proceeds retained by the Company
in respect
of the Liabilities
referred to in clause 5.5.3 may be applied by the
Company towards the payment of employees' salaries in the ordinary
course
of
business.
5.6 CUSTOMER
DATABASES
5.6.1 It is acknowledged and agreed by the Buyer that Paul Ryder
Haworth and any
companies controlled by him may utilise the data contained in
the
Saleslogix CD Rom, subject always to Paul Ryder Haworth complying
with his
obligations under clause 6 (Confidential Information and Use of
Names) and
clause 7 (Restrictive Undertakings) and subject to clause
5.6.2.
5.6.2 Paul Ryder Haworth shall not disclose, sell, encumber, lease
or otherwise
dispose ("together Disclose") of any right, title or interest in
the
contents of the Saleslogix CD Rom or any part thereof except to any
company
within his control and/or ownership and only for the period during
which
such
company is within his control and/or ownership. Mr Haworth
shall
procure that any such company shall not Disclosue the contents of
such CD
and
shall not use such contents at any time when the Company is not
within
the
control or ownership of Mr Haworth.
6. CONFIDENTIAL
INFORMATION AND USE OF NAMES
6.1 Each of the
Sellers shall, after Completion, keep and procure to be kept
secret and confidential all Confidential Information which relates
to the
Company or its business or is used in its business and shall not
use nor
disclose to any person any such Confidential Information save as
required
by their contract of
employment (if any) with the Company or any member of
the
Buyer's Group and save as required by clause 5.6.
6.2 The obligations of
confidentiality in this clause shall not extend to any
matter which is in or becomes part of the public domain otherwise
than by
reason of a breach of the obligations of confidentiality in this
Agreement
or
which any of
22
<PAGE>
the
Sellers receives from a third party independently entitled to
disclose
it
or required by law or regulatory authority to disclose. Each of
the
Sellers shall be permitted to disclose Confidential Information to
the
extent provided that that Seller shall first consult with the Buyer
or is
required to do so by their contract of employment (if any) with the
Company
or
any member of the Buyer's Group.
6.3 Subject to and
save to the extent provided in the Business Name Agreement
none
of the Sellers shall (save as required by their contract of
employment
(if
any) with the Company or any member of the Buyer's Group), at any
time
after Completion, use in connection with any trade or business
any
corporate name, trade name, or logo, domain name or e-mail address
which is
confusingly similar to
the name of the Company or to any corporate name,
trade name, logo, domain name or e-mail address used by the Company
at any
time
during the period of 5 years before Completion including
without
limitation the following:
ANALYSIS
SPLITBILL
VOIP
ANALYSIS
DYNAMIC REPORTS
7. RESTRICTIVE
UNDERTAKINGS
7.1 Customers,
suppliers and employees
The
Covenantor undertakes with the Buyer that he will not at any
time
during the period of two years and eleven months after Completion,
directly
or
indirectly and whether alone or in conjunction with, or on behalf
of or
by
way of assistance to, any other person:
7.1.1 canvass or solicit the custom of any person who was at any
time during the
period of six months before Completion a customer of the Company
(or having
been
solicited by the Company as a prospective customer) for the supply
of
goods and/or services which are competitive with any of those
supplied to
such
person (or in relation to which they were solicited) by the Company
at
any
time during the period of six months before the Completion Date;
or
7.1.2 do anything which he knows or ought reasonably to know would
cause or be
reasonably likely to cause any person who was at any time during
the period
of
23
<PAGE>
six
months before the Completion Date a supplier to the Company of
goods
and/or services to cease or materially reduce its supply of those
goods
and/or services to the Company; or
7.1.3 solicit or entice away from the Company or employ or
(directly or
indirectly) offer employment or a consultancy to any person who is
then an
employee of the Company and who at Completion was:
7.1.3.1 an employee of the Company and likely (in the reasonable
opinion of the
Buyer) to be in possession of Confidential Information relating to,
or able
to
influence the customer relationships or connections of, the Company
or
is
in possession of Confidential Information relating to the
following
products of the Company: ANALYSIS, VOIP ANALYSIS, SPLITBILL,
DYNAMIC
REPORTS, SMARTBILL, OR EMPULSE; or
7.1.3.2 a senior employee, earning a salary of more than
L20,000
7.1.4 except as the holder for investment of less than 5% in
nominal value of
the
issued share capital of a company whose shares are listed on a
recognised investment exchange (within the meaning of the
Financial
Services and Markets Act 2000) be engaged, concerned or interested
within
the
Restricted Area in any Relevant Business.
7.2 DEFINITIONS
For
the purposes of clause 7.1, "Relevant Business" means any
business
which consists of or includes to a material extent the provision of
billing
facilities or billing analysis software or services to the
telecommunications and datacommunications markets including fixed
line and
mobile communications and all methods of transmission which is
competitive
with
any business carried on by the Company during the period of 12
months
prior to Completion and "Restricted Area" means the countries
listed in
Schedule 8.
7.3 REASONABLENESS OF
UNDERTAKINGS
Each
of the undertakings in clause 7.1 is:
7.3.1 considered by the parties to be reasonable;
24
<PAGE>
7.3.2 a separate undertaking by each of the Covenantors and is
enforceable by
the
Buyer (on behalf of itself and the Company) separately and
independently of its right to enforce any one or more of the
other
undertakings in clause 7.1; and
7.3.3 given for the purpose of assuring to the Buyer the full
benefit of the
business and goodwill of the Company and in consideration of the
agreement
of
the Buyer to acquire the Shares on the terms of this Agreement.
Accordingly, if one or more of such undertakings is held to be
against the
public interest or unlawful or in any way an unreasonable restraint
of
trade, the remaining undertakings shall continue to bind the
relevant
Covenantors.
7.4 CESSATION OF
BUSINESS
Nothing in the undertakings set out in clause 7.1 shall be deemed
to
prohibit any action in respect of any business or part of any
business in
which (otherwise than as a result of any breach of any of those
undertakings by the Covenantors) the Company and the Buyer and
every member
of
the Buyer's Group have ceased to be involved prior to any event
giving
rise
to a claim, or which would but for this clause 7.4 give rise to
a
claim, under this clause 7.
8.
INDEMNITIES
8.1 The Warrantors
shall indemnify the Buyer and/or the Company and shall keep
the
Buyer and the Company indemnified against all liabilities suffered
or
incurred by the Company as a result of or in connection with:-
8.1.1 any claim against the Company by Paul Ryder Haworth or Susan
Patricia
Haworth in connection with their retirement from any office from
and/or
employment with the Company in accordance with any provision of
this
Agreement;
8.1.2 any claim against either of them by any person arising from
any
infringement by the Company of the Intellectual Property in
connection with
any
source code owned or used by such person where such
infringement
occurred on or prior to Completion and/or such infringement occurs
after
Completion as a continuation (wholly or partly) of an infringement
prior to
Completion;
25
<PAGE>
8.1.3 any claim against either of them any and all matters arising
from the
Share Options granted to Stuart Finch in respect of Shares in the
Company
and/or the lapse of such options;
save
to the extent that recovery is made by the Buyer or the Company
under
any
policy of insurance.
9. THIRD PARTY
RIGHTS
9.1 For the avoidance
of doubt and save as expressly provided in clause 8 and
clause 10.3, nothing in this Agreement shall confer on any third
party the
right to enforce any provisions of this Agreement.
9.2 Notwithstanding
that any provision of this Agreement may be enforceable by
any
third party this Agreement and its provisions may be amended,
waived,
modified, rescinded or terminated by the parties to this Agreement
without
the
consent or approval of any third party.
10. ASSIGNMENT
10.1 This Agreement shall be binding upon and endure for the
benefit of the
successors and assignees of the parties and in the case of
individuals
their respective estates and, subject to any succession or
assignment being
permitted by this Agreement, any such successor or assignee of the
parties
shall in its own right be able to enforce any term of this
Agreement.
10.2 Save as permitted under this Agreement, none of the parties
nor their
respective successors and assignees shall be entitled to assign its
rights
or
obligations under this Agreement without the prior written consent
of
the
others save that the Buyer may assign its rights under this
Agreement
to a
member of the Buyer's Group ("Permitted Assignee") subject always
to
the
following:
10.2.1 where such assignee ceases to be a member of the Buyer's
Group such
assignee shall be obliged as soon as reasonably practicable after
such
cessation to assign the rights under this Agreement back to a
member of the
Buyer's Group; and
10.2.2 the assignor shall remain liable in respect of its
obligations under this
Agreement notwithstanding any such assignment, including for the
avoidance
of
doubt the provisions of this clause 10.
26
<PAGE>
10.3 The Buyer may at any time charge, grant security over or
assign by way of
security all or any of its rights under this Agreement and a
beneficiary of
any
such charge, security or assignment may enforce any such right as
if it
had
been named in this Agreement as the Buyer (and may recover
hereunder on
the
same basis and to the same extent as the Buyer would otherwise
have
been
entitled).
11. WHOLE
AGREEMENT
11.1 This Agreement together with all documents entered into or to
be entered
into
pursuant to its provisions constitutes the entire agreement
between
the
parties in relation to its subject matter and supersedes all
prior
agreements, understandings and discussions between the parties,
other than
representations made fraudulently.
11.2 Each of the parties acknowledges that it is not relying on any
statements,
warranties or representations given or made by the others in
relation to
the
subject matter of this Agreement, save those expressly set out in
this
Agreement and other documents referred to above and that it shall
have no
rights or remedies with respect to such subject matter otherwise
than under
this
Agreement (and the documents executed at the same time as it or
entered into pursuant to it) save to the extent that they arise out
of the
fraud or fraudulent misrepresentation of any party or the
confidentiality
agreements dated 25 May 2006 and 14 July 2006.
12. WAIVER
The
rights and remedies of a party in respect of this Agreement shall
not
be
diminished, waived or extinguished by the granting of any
indulgence,
forbearance or extension of time by a party to another nor by any
failure
of
or delay by a party in ascertaining or exercising any such rights
or
remedies. Any Release by a party shall not affect its rights and
remedies
as
regards any other party nor its rights and remedies against the
party in
whose favour it is granted or made except to the extent of the
express
terms of the Release and no such Release shall have effect unless
granted
or
made in writing. The rights and remedies in this Agreement are
cumulative and not exclusive of any rights and/or remedies provided
by law.
27
<PAGE>
13. PROVISIONS
SURVIVING COMPLETION
Insofar as the provisions of this Agreement shall not have been
performed
at
Completion, they shall remain in full force and effect
notwithstanding
Completion.
14. PROPER LAW AND
JURISDICTION
This
Agreement shall be governed by the laws of England and Wales.
15. JURISDICTION
Any
dispute arising under this Agreement shall be subject to the
jurisdiction of the English courts and the parties waive any
objection to
Proceedings in such courts on the grounds of venue or on the
grounds that
Proceedings have been brought in an inappropriate forum.
16. FURTHER
ASSURANCE
The
Sellers shall at their own expense do such acts and things and
execute
such
documents as the Buyer may at any time reasonably require for
the
purpose of assuring to the Buyer the full benefit of this Agreement
and of
any
document to which it refers.
17. COUNTERPARTS
This
Agreement may be executed in any number of counterparts and by
the
parties on separate counterparts, each of which, when so executed
and
delivered, shall be an original, but all the counterparts shall
together be
deemed to constitute one and the same agreement.
18. COSTS
Each
party shall, except where otherwise stated, pay its own costs of
and
incidental to this Agreement and its subject matter.
19. SEVERABILITY
The
provisions of this Agreement are severable and distinct from
one
another, and, if at any time any of such provisions is or becomes
invalid,
illegal or
28
<PAGE>
unenforceable, the validity, legality or enforceability of the
others shall
not
in any way be affected or impaired thereby.
20. PUBLICITY
20.1 The parties shall forthwith upon make or procure to be made a
press
announcement in the Agreed Terms.
20.2 The Buyer and each member of the Buyer's Group shall be
permitted to make
such
disclosure in connection with the subject matter of this Agreement
as
is
required by the Federal or State Law, of the United States of
America or
the
rules of any regulatory body to which it is subject after (to
the
extent practicable) prior consultation with Paul Ryder Haworth (one
of the
Sellers).
20.3 Each of the parties shall both before and after Completion,
but subject to
clauses 20.1 and 20.2, keep the contents of this Agreement strictly
private
and
confidential and shall not without the prior written consent of
the
Buyer (in the case of any of the Sellers) or of Paul Ryder Haworth
(in the
case
of the Buyer) disclose any or all of them to any person or makes
any
other announcement relating to the transactions hereby agreed upon
except
to
the extent required by law or to their professional advisers who
are
subject to a duty of confidentiality and each member of the Buyer's
Group
and
except that the Buyer shall be entitled to make references to
the
transactions hereby agreed upon in its future annual reports and
financial
statements to the extent required by the law, rules and
regulations
applicable to such reports and statements.
21. NOTICES
21.1 Any Notice relating to this Agreement shall be in writing
delivered
personally or sent by pre-paid first class post or facsimile
transmission
to
the address of the party to be served given herein or such other
address
as may be notified for
this purpose (or, by way of service upon all of the
Sellers or the Warrantors, to the Sellers' Solicitors, quoting
their
reference SSG/23581.1).
21.2 Any such Notice: shall, if sent by post, be deemed to have
been served 24
hours after despatch (or 48 hours after despatch in the case of
airmail)
and,
if
29
<PAGE>
delivered by hand or sent by facsimile transmission, be deemed to
have been
served at the time of such delivery or transmission.
If,
however, in the case of delivery by post a period of 24 hours
after
despatch would expire on, or if, in the case of delivery by hand
or
facsimile transmission, such delivery or transmission occurs on, a
day
which is not a Business Day or after 4.00 p.m. on a Business Day,
then
service shall be deemed to occur on the next following Business
Day.
21.3 In proving service it shall be sufficient to prove, in the
case of a
letter, that such letter was properly stamped, addressed and placed
in the
post
and, in the case of a facsimile transmission, it shall be
sufficient
to
produce a transmission report showing that transmission was duly
and
fully made to the correct number.
21.4 Any such Notice shall be deemed to have been given to the
personal
representatives of a deceased Seller, notwithstanding that no grant
of
representation has been made in respect of his or her estate, if
the Notice
is
given to the Sellers' Solicitors in accordance with clause 21.1, to
the
deceased Seller by name or to his or her personal representatives
by title
at
the relevant Seller's address given herein or at such other address
as
may
have been notified by them in writing to the sender as being
their
address for service.
21.5 Each of the Sellers irrevocably and unconditionally appoints
the Sellers'
Solicitors as his agent for the service of any Notice or
proceedings
arising out of or in connection with this Agreement and the
transactions
hereby agreed upon.
IN WITNESS of which this deed has been executed and unconditionally
delivered
the day and year first above written.
30
<PAGE>
SCHEDULE 1
THE SELLERS
<TABLE>
<CAPTION>
DUE PROPORTION OF RELEVANT
NAME AND ADDRESS OF SELLER
SHARES
PURCHASE PRICE (%) PERCENTAGE %
--------------------------
------
------------------ ------------
<S>
<C>
<C>
<C>
Paul Ryder Haworth
400 A Ordinary Shares and
43.04
50
54 Shasta Avenue
350 B Ordinary Shares
East Brighton
Victoria 3187
Australia
Susan Patricia Haworth
400 A Ordinary Shares and
43.04
50
54 Shasta Avenue
350 B Ordinary Shares
East Brighton
Victoria 3187
Australia
Ryder Systems Trustee Limited 100 B Ordinary Shares
4.64
0
(Company number 4322454)
Unit 504
Daisy Field Business Centre
Appleby Street
Blackburn
Lancashire
BB1 3BL
Andrew Wilson
100 B Ordinary Shares
4.64
0
The Mount
Eastham Street
Clitheroe
BB7 2HY
David Latham
100 B Ordinary Shares
4.64
0
17 Keats Way
Cottam
Preston
PR4 0NL
</TABLE>
31
<PAGE>
SCHEDULE 2
THE COMPANY
<TABLE>
<S>
<C>
Name:
Ryder Systems Limited
Registered in England no: 2185983
Date of incorporation: 30 October
1987
Authorised share capital: L2,000 divided into 1000 A
Ordinary Shares of L1
each and 1000 B Ordinary Shares of L1 each
Issued share capital: 800
A Ordinary Shares of L1 each and 1000 B ordinary
shares of L1 each
Directors:
Paul Ryder Haworth
Susan Patricia Haworth
Secretary:
Susan Patricia Haworth
Auditors:
Ainsworths
Registered office:
Unit 504
Daisy Field Business Centre
Appleby Street
Blackburn
Lancashire
BB1
3BL
</TABLE>
32
<PAGE>
THE SUBSIDIARY
<TABLE>
<S>
<C>
Name:
Ryder Systems Trustee Limited
Registered in England no: 4322454
3
Date of incorporation: 14
November 2001
Authorised share capital: L1,000 of divided into 1,000
Ordinary Shares of L1
each
Issued share capital: 2
Ordinary Shares of L1 each
Directors:
Paul Ryder Haworth
Secretary:
Susan Patricia Haworth
Auditors:
None
Registered office:
Unit 504
Daisy Field Business Centre
Appleby Street
Blackburn
Lancashire
BB1 3BL
</TABLE>
33
<PAGE>
SCHEDULE 3
PROPERTY
<TABLE>
<CAPTION>
ADDRESS
TERM AND RENT
DATE AND PARTIES
-------
-------------
----------------
<S>
<C>
<C>
Office suites 502, 504 and 3 years from and including
Tenancy
Agreement
506 Daisyfield Business 1 January
2006. Rent at the dated 8 February 2006
Centre, Appleby Street, rate of
L72,850 per annum and made
between
Blackburn
for year 1, L73,850 per
European Settled
annum for year 2 and
Estates Plc (1) and
L74,850 per annum for year Ryder Systems
Limited
3
(2)
</TABLE>
34
<PAGE>
SCHEDULE 4
TAX
PART 1 DEFINITIONS
1.
INTERPRETATION
1.1 In this schedule,
unless the context otherwise requires, the following
words and expressions shall have the following meanings:
<TABLE>
<S>
<C>
"Accounts Relief"
(a) any Relief which was treated as an asset
of the Company in the Accounts; or
(b) any Relief
which was taken into
account in
computing (and
so reducing or eliminating) any
provision for Tax which appears in the Accounts
or which would have appeared in the Accounts but
for the presumed availability of such Relief;
"Event"
any act, omission, event, fact or circumstance
whatsoever (whether actual or deemed or treated as
occurring for any purpose);
"ICTA"
Income and Corporation Taxes Act 1988;
"ITEPA"
Income Tax (Earnings and Pensions) Act 2003;
"loss"
includes the loss, denial, clawback or cancellation
in whole or in part of any Relief and derivative
words (such as "lost")
</TABLE>
35
<PAGE>
<TABLE>
<S>
<C>
shall be construed accordingly;
"Post Completion Relief" any Relief which arises as a
result of any Event
which has occurred or occurs after Completion or in
respect of any period commencing on or after
Completion;
"Relevant Latham Event" the exercise on or
around the date of this agreement
by David Latham of his option over 100 "B" Ordinary
Shares of L1.00 each in the capital of the Company;
"Relevant Person"
the Warrantors and any person (except the Buyer or
the Company):
(a) who before
Completion was a member of the same
group of companies for any Tax purpose ("Group
Person"); or
(b) with whom, before
Completion the Company or, at
any time, the Warrantors or any Group Person is
connected; or
(c) any person who
stands or has stood in a direct
or indirect relationship with the Company at any
time before Completion such that failure by such
person at any time to pay any Tax could result
in an assessment on the Company under section
767A or section 767AA ICTA;
"Relevant Wilson Event" the exercise on or
around the date of this agreement
by Andrew Wilson of his option over 100 "B" Ordinary
Shares of L1.00 each
</TABLE>
36
<PAGE>
<TABLE>
<S>
<C>
in the capital of the Company;
"Relief"
(a) any relief,
allowance, exemption, set-off,
deduction or credit available from, against, or
in relation to, Tax or in the computation for
any Tax purpose of income, profits or gains; and
(b) any right to
repayment of Tax;
"Tax"
(a) any tax, duty,
impost, levy, deduction or
withholding, past or present, of the United
Kingdom or elsewhere; and
(b) (except as is
attributable to the delay or to
any act, default or omission after Completion of
the Company, the Buyer or any person acting on
their behalf), any interest, charge, surcharge,
penalty, fine or other imposition relating to or
arising in connection with any tax, duty,
impost, levy, deduction or withholding mentioned
in paragraph (a) of this definition or to any
account, record, form, return or computation
required to be kept, preserved, maintained or
submitted to any person for the purpose of any
such tax, duty,
impost, levy, deduction or
withholding;
"Tax Authority"
any authority, whether of the United
</TABLE>
37
<PAGE>
<TABLE>
<S>
<C>
Kingdom or elsewhere, competent to impose, assess or
collect Tax, including HM Revenue & Customs;
"Tax Claim"
any notice, demand, assessment, letter or other
document issued, or action taken, by or on behalf of
any Tax Authority and the submission of any Tax form,
return or computation from which, in either case, it
reasonably appears to the Buyer that the Company is
or may be subject to a Tax Liability or other
liability in respect of which the Warrantors are or
may be liable under this Schedule 4;
"Tax Liability"
(a) any liability
(including a liability which is a
primary liability of some other person and
whether or not there is a right of recovery
against
another person) to make an actual
payment of an amount in respect of Tax;
(b) any liability
(including a liability which is a
primary liability of some other person and
whether or not there is a right of recovery
against another person) to make a payment or
increased payment of Tax which would have arisen
but for being satisfied, avoided or reduced by
any Accounts Relief or Post Completion Relief;
and
(c) the disallowance,
loss, clawback, reduction,
restriction or modification of any Accounts
</TABLE>
38
<PAGE>
<TABLE>
<S>
<C>
Relief;
"Tax Legislation"
any statute, statutory instrument, regulation or
legislative provision providing for, imposing, or
relating to, Tax;
"Tax Warranties"
the warranties contained in part 2 of this Schedule
4;
"TCGA"
Taxation of Chargeable Gains Act 1992;
"VAT"
value added tax;
"VATA"
Value Added Tax Act 1994;
"VAT Group"
any group of companies for the purpose of section 43
VATA of which the Company is or has been a member on
or before Completion.
</TABLE>
1.2 In this schedule
"Company" shall in addition to the Company include every
subsidiary of the Company to the intent and effect that the
provisions of
this
schedule shall apply to and be given in respect of each subsidiary
as
well
as the Company.
1.3 Any reference to
an Event or the consequences of an Event occurring on or
before Completion shall include the combined effect of:
1.3.1 any two or more Events, all of which shall have taken place
or be deemed
(for
the purposes of any Tax Legislation) to have taken place on or
before
Completion; or
1.3.2 any two or more Events, at least one of which shall have
taken place or be
deemed (for the purposes of any Tax Legislation) to have occurred
on or
before Completion or in the ordinary course of business after
Completion.
1.4 Any reference to a
Tax Liability in respect of income profits or gains
earned, accrued or received on or before Completion shall include a
Tax
Liability in respect of income profits or gains deemed to have been
or
treated or regarded
39
<PAGE>
as
earned, accrued or received f
